Having regard to the decision to grant priority
to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr
Vitalie Ostrovar, is a Moldovan national who was born in 1974 and lives
in Chişinău. He was represented before the Court by Mr V. Nagacevschi,
on behalf of “Lawyers for Human Rights”, a non-governmental organisation
based in Chişinău. The Government were represented by Mr V. Pârlog,
their Agent.

A. The circumstances of the case

The facts of the case,
as submitted by the parties, may be summarised as follows.

1. Background

The applicant is the
former senior assistant to the prosecutor of the Centru District of
Chişinău. On 24 July 2002 the applicant was arrested by the Moldovan
Secret Services on charges of bribe-taking. Later the charges were modified
to corruption (trafic de influenţă).

On 15 August 2002
the Chişinău Regional Court ordered the remand of the applicant for
a period of thirty days. The remand was later prolonged by the decisions
of the Buiucani District Court of 2 September 2002 and 10 October 2002.

On 15 November 2002
the Court of Appeal ordered the applicant's release from detention.

On 4 April 2003 the
applicant was convicted by the Court of Appeal and sentenced to ten
years' imprisonment. He was immediately put in detention. The applicant
appealed against that decision. The outcome of the proceedings is unknown
to the Court.

2. The applicant's conditions of detention
in the Remand Centre No. 3 of the Ministry of Justice

The applicant's complaints
regarding the conditions of detention relate to two periods of detention
served in the Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3), namely between 18 October
2002 and 15 November 2002, and between 4 April 2003 and 13 December 2003.

(a) The applicant's submissions

The applicant claims
to have been detained in a 25 m² cell together with at times more than
twenty people. There were twenty metal bunk-beds, with no mattresses
or covering and it was not always possible to have access to a bed because
of overcrowding. After lodging his application with the Court, he was
transferred to a smaller cell of 15 m², where he claims to have had
to take turns in sleeping, because of overcrowding, and where the conditions
were allegedly considerably worse than before.

Smoking inside the
cells was not prohibited by the internal regulations of the prison,
and because of lack of smoking facilities, the inmates had to smoke
inside the cells. The applicant suffered from asthma and he claims that
the prison administration must have been aware of this since he had
been arrested and brought to prison a short time after undergoing asthma
treatment in a hospital. Because of the exposure to cigarette smoke
the applicant suffered many asthma attacks, which usually happened two
or three times a day.

There was no adequate
medical assistance. Although there were medical personnel in the penitentiary,
their ability to help was limited because of lack of medication. The
applicant asked the prison doctor on many occasions for medical assistance,
but he was refused. He was told that the prison did not have the necessary
medication. Because of the lack of medication he had to endure the attacks
and wait for them to pass, being obliged to sit in a vertical position.
His attacks became more frequent and started to last longer. While the
prison doctor knew that the applicant suffered from asthma, he gave
his permission for the applicant to be placed in a cell with smokers.

His situation was
worsened by the fact that the cell's window was closed by shutters and
there was no fresh air coming through it. Moreover, the cell was not
provided with a ventilation system, and was therefore very damp.

Because of lack of
heating and thermo-isolation the cell was very cold during the winter
and very hot during the summer.

The shutters on the
windows prevented daylight from coming in. Nevertheless, the prison
administration limited the electricity supply to the cells to only six
hours per day; therefore the inmates had to live in darkness and had
great difficulties in preparing food.

Water was provided
to the cell for only ten hours per day, sometimes less. Access to warm
water was limited to only once in fifteen days. There were no facilities
for washing and drying clothes. The inmates had to dry their clothes
in the cell.

Because of poor medical
assistance and bad hygienic conditions, the cells were infected with
bed bugs, lice and ants. The inmates were exposed to infectious diseases
like tuberculosis, skin and respiratory infections.

The toilet was situated
at 1.5 metres from the dining table and was permanently open. It was
impossible to prevent the bad smell because of the lack of adequate
water supply and lack of cleaning products.

There was no library
in the prison and the inmates did not have access to newspapers or other
publications. There were no appropriate facilities for recreation and
exercise.

The food served to
the inmates was of a very bad quality. It consisted of boiled water
with a bad smell and was almost inedible. The applicant submitted that
the Government spent 2.16 Moldovan Lei (MDL)
(the equivalent of 0.14 euros (EUR) at the time) for one detainee's
food per day, while the price of a loaf of bread was more than MDL 3.

(b) The Government's submissions

The applicant was
detained in cell no. 16 with a surface of 28.4 m², designed for fourteen
detainees, and in cell no. 138 of 19.3 m², designed for ten detainees.

In accordance with
Article 17 of the Law on Pre-Trial Detention, the applicant could have
asked the prison authorities to be removed to another cell with non-smokers.

The detainees were
provided with medical assistance in accordance with the law. When a
prisoner needed medical assistance that could not be provided by the
prison doctors, he could be taken to a regular hospital. The prison
was provided with medication by the State; however, in cases when the
prison lacked certain medication, the detainees had the right to receive
it from their relatives. Since the applicant was provided with all the
necessary medication, no medical report prescribing other medication
was drafted.

The prison authorities
were aware of the applicant's asthma. According to the prison register,
during the material time the applicant asked twice for medical assistance:
on 2 September 2003 and on 5 November 2003. On 5 November 2003 a doctor
consulted him and prescribed medication.

The ventilation of
the cells was effected by opening the windows and fanlights during the
detainees' exercise and by the common ventilation system.

The heating was provided
by the prison's own heating system which used natural gas and coal.

The cells had access
to daylight, and electricity was provided continuously to the cells.

The cells were permanently
provided with tap water, and accordingly the inmates enjoyed an adequate
level of hygiene. The Government also stated that the detainees had
access to warm water.

The toilets were separated
from the rest of the cell by a wall in order to ensure the privacy of
the detainees.

The cells were equipped
with radio sets, sometimes with television sets.

The applicant enjoyed
the right to a daily walk outdoors for one hour with the possibility
of exercising.

The detainees were
provided with free food in accordance with the norms provided by the
Government and the quality of food was satisfactory. The prison was
provided on a daily basis with bread, vegetable oil, vegetables, tea
and sugar. Because of insufficient funding, the provision of meat, fish
and dairy products was made according to what was possible. However,
the detainees were allowed to receive once a month a parcel with food
from their relatives. Moreover, the detainees had the right to buy food
from the prison store at least once a month, and to spend up to MDL
18 (the equivalent of EUR 1.2 at the time).

There was no intention
to humiliate or to debase the applicant and the prison authorities did
not undertake any action in order to humiliate him.

3. Alleged interference with the applicant's
correspondence

(a) The applicant's submissions

According to the applicant,
the prison authorities were constantly interfering with his correspondence.
The correspondence with his lawyer and with the prosecutor's office
had been interfered with by the prison authorities. The applicant brought
to the Court's attention a letter sent to him by his lawyer in September
2003 and a letter sent by the prosecutor's office in August 2003, which
bore the prison's stamps on them. He also sent a copy of an envelope
sent to him in January 2004 by the Information Office of the Council
of Europe in Chişinău, which had an inscription made by the prison
authorities on it.

On 13, 14 and 15 December
2003 while being transferred to another prison he was subjected to searches,
during which his correspondence with the Court was examined by the prison
authorities.

The letters sent to
him by his mother did not always reach him. In support of this submission
the applicant sent the Court a receipt of a registered letter with acknowledgement
of receipt sent to him by his mother on 1 October 2003, which never
reached him.

(b) The Government's submissions

The Government argue
that the letter of September 2003 from the applicant's lawyer was not
addressed to the applicant alone, but to the chief of the prison too.
As to the letter from the Information Office of the Council of Europe,
the Government submit that it was not written on the envelope that the
sender was the Information Office of the Council of Europe. Moreover,
the envelope arrived at the prison in a bad state and the prison officer
made a note on it to that effect.

The Government submit
that the searches that took place on 13, 14 and 15 December 2003 were
provided for by law and had the aim of ensuring the internal order in
the prison.

According to Article
18 of the Law on Pre-Trial Detention, detained persons needed a written
authorisation from the body in charge of their cases in order to be
able to correspond with their families. The applicant did not have an
authorisation to correspond with or communicate by telephone with his
relatives because of the seriousness of the offence he was charged with
and in the interests of justice.

4. Alleged interference with the applicant's
right to have contacts with his wife and daughter

(a) The applicant's submissions

The applicant also
submits that he was precluded from seeing his wife and his daughter
and that he could not have telephone contact with them.

On 30 June 2003 the
applicant together with other cellmates lodged a complaint with the
Prosecutor General, in which the applicant complained inter alia about the ban on receiving visits, including long
term visits, from his family and other persons. The prisoners asked
the Prosecutor General to order the prison authorities to allow them
have long term visits, telephone conversations and other kinds of contact
with their relatives.

On 7 July 2003, the
Prosecutor General's Office informed the applicant that his complaint
had been forwarded to the Prosecutor's Office of Chişinău.

On 25 August 2003
the applicant and his cellmates wrote a new letter to the Prosecutor
General's Office complaining about the lack of reply from the Prosecutor's
Office of Chişinău to their letter. The prisoners repeated the complaints
about the ban on visits by relatives and on telephone conversations
with them and complained about an alleged breach of Article 3 of the
Convention.

On 28 August 2003
the applicant received a letter from the Prosecutor's Office of Chişinău
dated 9 August 2003 by which his complaints about the ban on visits
were dismissed. In particular it stated: “...all the rights of remanded
persons are provided for by Article 16 of the Law on remand. Such rights
as telephone conversations and long term or short term visits by relatives
or other persons are not provided in that law. The fact that these rights
are not expressly forbidden does not mean that they are guaranteed”.

On 1 September 2003
the applicant and his cellmates challenged the Prosecutor's refusal
of 9 August 2003 before the Râşcani District Court. Relying on Article
8 of the Convention and on domestic legislation, they complained about
the prison authority's and prosecutor's denial of their right to have
visits, including long term visits, from their relatives, telephone
conversations and other kind of contacts with relatives and other persons.
They asked the court to oblige the prosecutor to solve their problem.
They also asked the court to hear the case in their presence.

On 11 September 2003
the Prosecutor General's Office wrote the applicant a letter in which
it also dismissed the complaints.

On 3 November 2003
the applicant and his co-detainees lodged a supplementary application
with the Râşcani District Court asking it to examine their application
of 1 September 2003. They argued that in accordance with the Code of
Criminal Procedure, the Court was obliged to examine their application
within ten days of receipt. The court's failure to comply with that
deadline constituted a breach of their right to an effective remedy
under Article 13 of the Convention.

In the meantime, on
23 October 2003, judge V.M. from the Râşcani District Court examined
the applicant's and his cellmates' application of 1 September 2003 in
their absence and dismissed it. The court considered that the application
had a general character and did not refer to any specific events. The
court issued a decision with the application number 13-69/03 dated 23
October 2003.

On the same date,
the same judge from the Râşcani District Court examined an application
of other detainees from Cricova prison concerning alleged abuses by
police during a prison riot and dismissed it. The court's decision had
exactly the same application number and the same date as the decision
in respect of the applicant and his cellmates.

On 29 January 2004
the Râşcani District Court informed the applicant and his co-detainees
that their application had been dismissed on 23 October 2003.

On 4 March 2004 the
applicant and his co-detainees wrote a letter to the Râşcani District
Court and asked for a copy of its decision of 23 October 2003.

On 10 March 2004 the
applicant and his co-detainees appealed against the decision of 23 October
2003 to the Chişinău Court of Appeal. In their appeal application
they stated inter alia that the Râşcani District Court had examined their
case in their absence and that it had not even sent them a copy of its
decision.

On 26 March 2004 the
Râşcani District Court sent the applicant and his cellmates a copy
of its decision of 23 October 2003 which referred to the riot at Cricova
prison.

On 14 April 2004 the
applicant and his cellmates sent a new letter to the Râşcani District
Court and informed it that the decision sent to them on 26 March 2004
did not refer to their case and asked for a copy of their decision.
The Court does not have information as to whether the applicant and
his cellmates received a reply to this letter.

On 28 June 2004 the
Chişinău Court of Appeal examined the applicant's appeal against the
decision of the Râşcani District Court and dismissed it by a final
judgment. In its judgment the Court of Appeal indicated that the applicant
and his lawyer were present at the hearing. However, the facts and the
law part referred to the Cricova prison riot and did not have any connection
with the applicant's case.

(b) The Government's submissions on the facts

The Government submit
that according to Article 19 of the Law on the detention on remand,
a detained person needed a written authorisation from the investigation
body in charge of his case in order to be able to receive visits from
family or from other persons.

The applicant received
visits from his mother on 30 May 2003, 12 November 2003 and 12 December
2003.

B. Relevant non-Convention material

1. Acts of the European Committee for
the prevention of torture and inhuman or degrading treatment or punishment
(CPT)

Report of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment concerning the visit to
Moldova between 11 and 21 October 1998

77. Prisoners were accommodated primarily in five
buildings. Buildings I, II and VII for the most part accommodated remand
prisoners. Male juveniles were held in a section of building III, the
basement of which was reserved for prisoners in transit. Women had a
separate detention area, situated in Building V. Sentenced prisoners
were scattered among the various buildings, except for the buildings
housing the detachment of convicted prisoners employed as workers, situated
in Building VIII. It should also be noted that all prisoners sentenced
to life imprisonment were accommodated in the basement of Building II.

80. In contrast, in all the other detention areas,
living conditions of the vast majority of the prison population left
a considerable amount to be desired. In most of the cells, the living
space per prisoner was well below the minimum standard set and the cramming
in of persons had reached an intolerable level. For example, in Buildings
I and II, up to 16 people were accommodated in cells of 24 m², 24 people
had to share a cell of 32 m², and 29 people were packed into a cell
of 52 m². In the juveniles' section in Building III, 12 young people
were placed in a cell of 21 m² and 16 in a cell of 23 m². In addition,
the delegation observed that cells of 8 m² to 9 m² accommodated up
to four people.

Furthermore, in these cells access to natural
light was very limited, artificial lighting was mediocre, and the air
polluted and rank. For prisoners still under investigation (i.e. over
700 prisoners), the situation was even worse, their cells being virtually
totally without access to natural light because of the thick external
metal blinds covering the windows. By force of circumstances, the equipment
was reduced to the bare minimum, comprising metal or bunk beds which
were extremely rudimentary and in a poor state, and a table and one
or two benches. Furthermore, in many cells, there were not enough beds
and prisoners had to share them or sleep in turns. In addition, the
bedding was in a bad condition; the very small stocks of mattresses,
blankets and sheets was not enough and many prisoners without family
or resources had to sleep just on the bed frame.

The cells had a sanitary annex, a real source
of infection. Above the Asian toilet was a tap which served both as
a flush and as a source of water which prisoners could use to freshen
up or wash. Moreover, this area was only partially partitioned by a
small low wall less than one metre high, which meant that it was not
possible to preserve one's privacy.

The state of repair and cleanliness in the cell
blocks, overall, was also of considerable concern. In addition, many
of the cells were infested with cockroaches and other vermin and some
prisoners also complained that there were rodents.

To sum up, the living and hygiene conditions
for the vast majority of the prison population were execrable and, more
particularly, constituted a serious health risk.

81. The three transit cells in use at the time
of the visit in Building III deserve particular mention. The situation
in terms of living space in the cells was without a doubt the worst
seen. Up to 18 prisoners were crammed into cells of 18 m². Half of
the surface was taken up by a two level wooden platform (without mattress
and blankets) completely blocking the window. In addition, the artificial
lighting was mediocre and the atmosphere there was suffocating. As the
remaining surface of the cell was filled up with the detainees' belongings
and an Asian toilet, the detainees had no other choice but to pile onto
the two levels of the platform. A number of detainees had been accommodated
in these intolerable conditions for three to four months.

82. As regards washing facilities for prisoners,
they had weekly access to the showers. However, the number of showers
was notoriously inadequate for the male population (23 showers for approximately
1400 detainees, and moreover, its functioning was unreliable). In addition,
prisoners who were not in a position to receive the basic washing necessities
from their families were totally left without because of the lack of
soap and towels in the prison.

83. The material conditions described above were
further aggravated by another major inconvenience. Prisoners had to
put up with very loud and repetitive music which was ongoing throughout
the day and broadcast by loud speakers in the yard from 6 o'clock in
the morning to 10 o'clock at night. The reason given for this measure
was to ensure that the various categories of prisoners had no contact
with each other. Many prisoners complained about this situation and
the delegation was able to see for itself how obtrusive it was. For
example, in many of the cells it was virtually impossible to hold a
conversation.

98. The health care staff in prison No. 3 comprised
nine full-time doctors, assisted by seven assistants, 11 nurses and
a psychologist. The nine doctors were as follows: one doctor in charge
of the prison medical service, two general practitioners, two pneumologists,
a psychiatrist, a dermatologist, a radiologist and a dentist. In addition
to providing a consultation facility, the medical staff was responsible
for an infirmary with a capacity of 70 beds, although in reality, this
area accommodated 200 patients, primarily patients suffering from tuberculosis.

The medical team could at a pinch be considered
sufficient. However, such is not the case for the team of assistants
and nurses.

The Report of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment concerning the visit
to Moldova between 10 and 22 June 2001

69. The visited penitentiary establishments were
severely affected by the country's economic situation. The budget ceiling
for spending on the prison service under the 2001 Finance Act had been
set at 48.7 million Lei (approximately 4.2 million Euros) or 38,9% of
the resources needed per year. As a result, prisons suffered from severe
shortages from every standpoint. For example, the daily budget for feeding
a prisoner was 2.16 Lei, just 38.8% of the current statutory norm. Prisons
also suffered form cuts in electricity, water and heating, not to mention
the unavailability of medicines necessary for treating prisoners.

In their letter of 5 November 2001, the Moldovan
authorities refer to the efforts made at the beginning of 2001 by the
Department of Prison Administration to obtain humanitarian aid from
international organizations and individuals, in order to resolve the
most urgent problems of the prison system (2.3 million Lei have been
obtained in this way).

The CPT recognizes the laudable efforts made
by the Moldovan prison administration and these deserve to be supported.
Nevertheless, the Committee has already recalled on several occasions
that there are certain basic necessities of life that must, in all circumstances,
including in a serious economic situation, be assured by the state in
respect of persons for which it is responsible. Nothing can ever exempt
the state from this responsibility.

As a consequence, the CPT calls upon the Moldovan
authorities, at the highest political level, to take without delay the
necessary measures in order that all prisons in Moldova may adequately
assure the basic necessities of life for all detainees.

78. The description of Prison No. 3 in Chişinău
in paragraph 77 of the report on the 1998 visit is still valid. As previously
indicated, this establishment suffered from severe overcrowding: 1,892
prisoners (mainly remand prisoners), including 127 women and 122 juveniles,
for 1,480 places.

82. For example, the follow-up visit to Prison
No. 3 in Chişinău revealed positive changes which the CPT welcomes.
It particularly approves of the removal of the heavy blinds covering
the windows of cells looking onto the interior of the establishment.
It is also planned to replace the blinds on the windows looking onto
the street with an alternative arrangement that will let in sufficient
natural light.

... Major repairs had also been made to the heating
with, in particular, the installation of a new boiler, while the prison's
central showers had been completely renovated (three shower rooms were
operational and a fourth was being repaired) with the help of former
prisoners and prisoners' families. This made it possible for male prisoners
to take a shower, with hot water, every ten days. In certain buildings,
moreover, repair work on the electrical system and painting of the corridors
had been completed. A few cells were currently undergoing refurbishment.

That said, the appalling living conditions and
state of hygiene in buildings I, II and III, including the transit cells,
described in paragraphs 80 and 81 of the previous report, had not changed
(except as far as access to natural light is concerned). Indeed, the
acute overcrowding in these buildings exacerbated matters still further.
In the few cells viewed that were properly equipped and fitted out,
this was due to the prisoners themselves, who had been able to procure
what was needed from their families.

87. The absence of organised activity programmes
was a common feature of the establishments visited. This was undoubtedly
a consequence of the economic situation and overcrowding, but also of
the restrictive legislation governing the categories of prisoners accommodated
there. Only a minute fraction of the prison population had work: some
sixty in Bender and Chişinău and twenty-seven in Cahul. The majority
of these prisoners formed part of the workforce allocated to the various
prison duties. Other forms of activity were almost non-existent. It
should be noted, however, that some efforts had been made in Prison
No. 3, following the CPT's recommendations. For example, the outdoor
exercise areas had been equipped with modest sports facilities. In this
context, management plans to fit out two sports halls as soon as possible
deserve particular support. Improvements had also been made to the juvenile
detention regime: a television room had been provided and a few activities
organised, such as music, singing and group discussions/debates. However,
these early attempts to meet the needs of young persons remain an isolated
example. In the other establishments, they were left entirely to their
own devices.

92. The follow-up visit to Prison No. 3 showed
that compared with 1998 (see paragraph 98 of the report) the situation
regarding health staffing levels had deteriorated. In particular, the
number of nurses had fallen (from eleven to eight) added to which, two
of these posts were vacant. The number of doctors and medical assistants
remained the same, 9.5 and 7 respectively, but the post of head doctor
was vacant. Such a team is not sufficient to meet the needs of almost
2,000 prisoners, a significant number of which were in the prison hospital
(149), particularly as far as the care staff is concerned (medical assistants
and nurses). The number of complaints received concerning access to
medical staff and medical care is therefore hardly surprising.

95. As indicated in the preliminary remarks, the
supply with necessary medication was problematic in the visited establishments.
The detainees mostly depended on their families or on non-governmental
organisations in order to obtain the necessary medication (for example,
Pharmaciens sans Frontières at Prison No. 3)...

98. From the standpoint of medical confidentiality,
medical examinations and consultations did not take place in appropriate
conditions in any of the establishments. As a rule, everything took
place in the custody areas at cell doors (through the hatch), in the
presence of guards. If prisoners had to be treated in a consultation
room, guards were also in attendance. The situation in Prison No. 3,
in the so-called "procedure" room in the infirmary, was particularly
undignified. Treatment was administered through a closed door with bars,
with an opening measuring 37 cm². The patients concerned then had to
present the relevant part of the body, be it forearm or buttocks, in
full view of other prisoners and staff.

99. There also needs to be a review of access
to a doctor and a medical assistant. The delegation observed that when
they were doing their daily rounds, the medical assistants only had
minimal contact with prisoners, and always in the presence of guards.
As a result, it proved very difficult to request consultations, which
had to be done through guards. Many complaints were received about the
considerable delays in gaining access to care staff and the barriers
erected by guards. The CPT recommends that this situation be remedied.

100. There are several indicators to suggest that
the situation regarding tuberculosis, already a matter of concern in
1998, is deteriorating. For example, in Prison No. 3, there has been
a constant increase in the number of recorded active cases, from 54
in January 2000 to 121 in June 2001). Moreover, according to statistics
supplied, tuberculosis accounts for 42% of the deaths in prison.

121. The CPT notes the improvements made in Prison
No. 3 to the conditions in which visits take place, with the refurbishment
of the booths used for short visits and rooms fitted out for convicted
prisoners' long visits. Nevertheless, the visiting areas remain insufficient,
given the capacity of the establishment. ... The CPT invites the Moldovan
authorities to develop the facilities for visits in the establishments
visited at the earliest possible opportunity.

2. Relevant domestic law

The Constitution of the Republic of Moldova

Article 30

“(1) The State shall ensure the privacy of letters,
telegrams and other postal dispatches, of telephone conversations and
of the use of other legal means of communication”.

This principle was restricted in relation to
detainees. Specific provisions relating to the privacy of prisoners'
correspondence were set out in the Code for the Execution of Criminal
Sentences.

The Code for the Execution of Criminal Sentences

Article 14

“(1) A convicted prisoner shall enjoy rights
established in the legislation on the execution of criminal sanctions
in accordance with the nature of the sanction and the restrictions of
any of his rights imposed upon him by the sentencing court.

(2) A convicted prisoner shall be entitled:

(c) to receive and send mail, and to submit explanations,
proposals and complaints in his language, and, if necessary, to use
the services of an interpreter.”

Article 73

“(1) A convicted prisoner shall be entitled
to receive and send an unlimited number of letters and telegrams.

(2) A convicted prisoner's outgoing and incoming
correspondence ... shall be subject to censorship. A petition addressed
to an ombudsman by a detained person shall not be verified by the prison
administration and shall be transmitted to the addressee within twenty-four
hours (as amended by Law no. 18-XIV of 14 May 1998).

(4) A convicted prisoner's proposals, requests
and complaints addressed to an hierarchically higher legal authority
shall be dispatched to such authority within three days.”

The Law on Pre-Trial Detention No. 1226-XIII

Article 16. The
rights of the remanded persons

1. The remanded persons have the right to:

d) to be visited by their lawyer, relatives and
other persons;

f) to correspond with their relatives and with
other persons, to send complaints, requests and letters to public authorities
and to public servants in accordance with the provisions of Article
18;

Article 17. The
right to personal security

In case of any danger for his life and health,
the remanded detainee has the right to make a request before the prison
authority to be transferred to a cell where there is no such danger.
In such a case, the prison authority has the duty to undertake urgent
measures in order to transfer the detainee to a non-dangerous place.

Article 18. Correspondence,
complaints and requests

(1) The remanded persons can correspond with their
relatives and with other persons on the basis of a written authorisation
by the person or the authority in charge with their case. The letters
written or received by the remanded persons are sent to the addressees
or handed by the prison authority to the remanded persons within three
days.

By virtue of Law No.
206-XV of 29.05.2003 which entered into force on 18 July 2003 the following
was added at the end of the first sentence:

who can limit the correspondence in the interest
of the criminal investigation or in the interest of justice, as well
as in the interest of security and order in the detention facility.

By virtue of the same
law the words “within three days” were replaced with “within twenty-four hours”.

Article 19

(1) The administration of the remand centre allows
the remanded person to have contact with his or her relatives or other
persons, if the contact is authorised by the investigating body charged
with the remanded person's case. As a rule, the remanded person has
this right once a month. The length of a meeting shall be from one to
two hours.

Article 38

(1) Control over the respect of the law in places
of detention on remand is exercised by the Prosecutor General and by
the prosecutors subordinated to him in accordance with the Law on the
Prosecution Office.

(2) The prosecutors' orders and decisions in respect
of the order and conditions of detention of the remanded persons are
compulsory for the administration of the remand centres.

The old Code of Criminal Procedure, in force between 24 March 1961
and 12 June 2003

Article 6

No one shall be deprived of his liberty save
in accordance with the law and with the procedure provided for by the
present code in the following cases:

1) the lawful detention of a person after conviction
by a competent court;

2) the lawful arrest of a person for non-compliance
with the lawful order of a court;

3) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;

...

Everyone who has been the victim of arrest or
detention in contravention of the provisions of this article shall have
the right to compensation.

The Code of Civil Procedure

Article 7

(1) Civil proceedings shall be initiated by a
court after receiving a request from a person who seeks the protection
of an infringed or contested right, of a freedom or of a legitimate
interest....

Law No. 1545 on the compensation for damage caused by the illegal
acts of the criminal investigation bodies, prosecution and courts

Article 1

(1) In accordance with the present law, the individuals
and the legal entities are entitled to compensation for moral and pecuniary
damage caused as a result of:

b) illegal search carried out during the investigation
phase or during the trial of the case, confiscation, levy of a distraint
upon property, illegal dismissal from employment, as well as other procedural
acts that limit the rights of the persons;

c) illegal administrative arrest or order to work
for the community, illegal confiscation of the property, illegal fine;

d) carrying out of operative investigative measures
with breaches of legal provisions;

e) illegal seizure of the accounting documents,
of other documents, of money, of stamps as well as blocking of banking
accounts.

(2) The caused damage shall be fully compensated,
irrespective of the form of guilt of the persons from the criminal investigation
organs, prosecution and courts.

Article 4

A person shall be entitled to compensation in
accordance with the present law when one of the following conditions
is met:

a) pronouncement of an acquittal judgment;

b) dropping of charges or discontinuation of an
investigation on the ground of rehabilitation;

c) adoption of a decision by which an administrative
arrest is cancelled on the grounds of rehabilitation;

d) adoption by the European Court of Human Rights
or by the Committee of Ministers of the Council of Europe of a decision
in respect of damages or in respect of a friendly settlement agreement
between the victim and the representative of the Government of the Republic
of Moldova before the European Court of Human Rights. The friendly settlement
agreement shall be approved by the Government of the Republic of Moldova;
...

The Government sent the Court a copy of a letter
of 14 May 2004 addressed to the Ministry of Justice by the President of
the Tighina District Court in which it was stated that the Moldovan
Helsinki Committee for Human Rights has brought a civil action against
the Ministry of Justice claiming a breach of the right not to be detained
in inhuman and degrading conditions and requesting compensation. The
action had not been examined, but had been sent to the Supreme Court
of Justice for clarification of the court's competence.

The Government also
sent the Court a copy of a letter of 27 February 2004 in which the Prosecutor's
Office informed the Chief of the Remand Centre No. 3 of the Ministry
of Justice that following a routine check it discovered that five foreign
detainees were kept in a cell designed for four detainees. In a reply
of 12 March 2004 the Chief of the Prison wrote to the Prosecutor's Office
that the foreign detainees had been moved to a bigger cell. He also
informed him that at that moment 1500 prisoners were detained in the
prison, the capacity of which was 1480 places.

In a letter of 17 May 2004 the Vice-President
of the Buiucani District Court informed the Government Agent about the
case of T.S. who has been awarded compensation on the basis of Law 1545.

COMPLAINTS

1. The applicant complains
under Article 3 of the Convention about the conditions of detention.

2. He also complains
under Article 8 about the interference with his correspondence by the
prison authorities. In particular he complains about the censorship
of the correspondence with his lawyer, with the Prosecutor's Office,
with the Information Office of the Council of Europe in Chişinău and
with the Court. He also complains about his mother's correspondence
not reaching him.

3. He further complains
that his right to family life is breached because he is not allowed
to be visited by his wife and his daughter.

4. The applicant complains
under Article 13 of the Convention taken together with Articles 3 and
8 that Moldovan legislation does not provide for effective remedies.

5. The applicant also
complains under Article 1, 14 and 18 of the Convention.

THE LAW

A. The Government's Objection

The Government submit
that the applicant has not exhausted remedies available to him under
Moldovan Law, as required by Article 35 § 1 of the Convention. In particular
they submit that the applicant could have, but did not make use of the
provisions of Article 6 of the old Code of Criminal Procedure, Article
7 of the Code of Civil Procedure and Article 38 of the Law on Pre-Trial
Detention (see above) in respect of his complaints under Articles 3
and 8 of the Convention. He also could have, but did not make use of
the provisions of Article 17 of the Law on Pre-Trial Detention (see
above), in respect of his complaints under Article 3 of the Convention
regarding cigarette smoke.

1. General principles

The Court recalls
that the purpose of Article 35 § 1 of the Convention is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are submitted
to the Court. Consequently, States are dispensed from answering for
their acts before an international body before they have had the opportunity
to put matters right through their own legal systems (see, for example,
the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33,
and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

Under Article 35 §
1 of the Convention normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in respect
of the breaches alleged. The existence of the remedies in question must
be sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness (see,
among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).

Furthermore, the Court
recalls that in the area of exhaustion of domestic remedies the burden
of proof is on the Government to satisfy the Court that the remedy was
an effective one, available in theory and in practice at the relevant
time, that is to say, that it was accessible, was one which was capable
of providing redress in respect of the applicant's complaints and offered
reasonable prospects of success. Once this burden of proof is satisfied,
it falls to the applicant to show that the remedy advanced by the Government
was in fact exhausted, or was for some reason inadequate and ineffective
in the particular circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement (see, for example,
the Akdivar and Others judgment cited above, p. 1211, § 68, and Selmouni v. France cited above, § 76).

2. Application of these principles to
the present case

(a) The complaints concerning the applicant's
conditions of detention, correspondence with his mother and contacts
with his wife and daughter

(i) Article 6 of the old Code of Criminal Procedure,
Article 7 of the Code of Civil Procedure and the Convention

The Government submit
that it was open to the applicant to apply to a court in accordance
with Article 6 of the old Code of Criminal Procedure and Article 7 of
the Code of Civil Procedure. In any event, if the domestic law did not
provide for relief, the applicant was entitled to rely directly on the
provisions of the Convention. In support of their submissions, the Government
submitted a copy of a letter addressed to the Ministry of Justice by
the President of the Tighina District Court (see the “Domestic Law”
part).

The applicant submits
that the remedies invoked by the Government were not effective. The
poor conditions of detention in Moldovan prisons are due to the lack
of sufficient public funding and the deficiency of the State's policy
in that respect. He submits that for the improvement of the conditions,
the prison needs money for structural repairs, adequate food and the
continuous supply of electricity and water. The State also needs to
implement an adequate penal policy in order to reduce the number of
prisoners. Any court action would be futile because no court has the
power to oblige the Parliament to allocate more money to prisons or
to elaborate a new penal policy. Therefore a hypothetical possibility
to go to court would prove to be totally ineffective.

The Court notes that
Article 6 of the old Code of Criminal Procedure guaranteed the right
to liberty in terms somewhat similar to those of Article 5 of the Convention.
In the present case, however, the applicant does not complain about
any breach of his right to liberty. Accordingly, the Court is not convinced
that under this Article an individual could request the improvement
of his or her conditions of detention or the cessation of an interference
with his or her Article 8 rights.

As regards Article
7 of the Code of Civil Procedure, it is noted that it institutes a general
principle according to which the courts are obliged to examine the complaints
brought before them. The Government suggest that the applicant could
have brought an application before the domestic courts while relying
directly on the provisions of the Convention. The Court notes that the
applicant did bring an application based directly on the provisions
of the Convention; in his application to the Râşcani Disctict Court
of 1 September 2003, the applicant relied expressly on Article 8 of the
Convention However, his application was dismissed without any examination
(see above). Accordingly, this remedy proved to be ineffective.

(ii) Article 38 of the Law on Pre-Trial Detention

The Government submit
that the applicant could also have complained to a prosecutor in accordance
with Article 38 of the Law on Pre-Trial Detention. In support of this
submission the Government rely on a case in which following the Prosecutor's
Office initiative, five foreign detainees from Prison No. 3 were moved
to a bigger cell (see the “Domestic Law Part”). The Government also
rely on the case of T.S. (see the “Domestic Law” part).

The applicant submits
that this remedy was not effective for the reasons invoked by him in
respect of Article 6 of the old Code of Criminal Procedure and Article
7 of the Code of Civil Procedure. He argues that the case of T.S. is
different from his case because T.S. did not request the improvement
of his conditions of detention while he was still being detained, but
instead sought compensation after being released, for illegal detention.

As regards the applicant's
complaints in respect of the conditions of detention the Court notes
that in a letter addressed to the Prosecutor General's Office on 25
August 2003 containing mostly complaints under Article 8 of the Convention,
the applicant also complained about an alleged breach of his rights
provided for by Article 3 of the Convention (see the Facts); however,
the Prosecutor's Office did not react in any way in response to that
complaint. At the same time, as regards the letter addressed by the
Prosecutor's Office to the Chief of the Prison in respect of the foreign
detainees, it appears that that letter was not a reaction to a complaint
lodged by the detainees in question but that the Prosecutor's Office
wrote it of its own motion. Moreover, from the reply given by the Chief
of the Prison, it appears that the prison was overcrowded both before
the problem of the foreign detainees was solved and after. The Court
notes that such problems as overcrowding (admitted by the Chief of the
Prison in his letter to the prosecutor) and insufficiency of food (admitted
in the Government's observations) were apparently of a structural nature
and did not concern only the applicant's personal situation. The Government
have not demonstrated that the prosecutor could redress the applicant's
situation, given the admitted economic difficulties of prisons in Moldova.
Moreover, even assuming that the prosecutor could redress the applicant's
situation, it does not appear either from the Government's submissions,
or from the domestic legislation that he had the power to grant adequate
financial compensation for non-pecuniary damage to the applicant.

As far as the applicant's
complaints under Article 8 are concerned, the Court notes that on 30
June 2003 the applicant and his cellmates complained to the Public Prosecutor's
Office about the prison's policy of interfering with their correspondence,
the denial of the right to be visited by relatives and other persons
and the denial of the right to have telephone conversations. Since the
Public Prosecutor's Office dismissed their complaints the applicant
and his co-detainees challenged the refusal in the court. In its decision
of 23 October 2003 the court ruled inter alia that the detainees could not bring such general
claims before the prosecutor and that they could complain only about
specific problems. The Court of Appeal dismissed the applicant's appeal
without giving any assessment to the reasons invoked.

As regards the case
of T.S. invoked by the Government, the Court notes that T.S. was awarded
compensation on the basis of Law No. 1545 and not on the basis of Article
38 of the Law on Pre-Trial Detention. The Court also notes that according
to Article 4 of Law No. 1545, the law is applicable only to persons
who have been acquitted or in respect of whom the criminal investigation
has been discontinued (see the “Domestic Law” part) which is not
the case of this applicant.

Consequently, the
Court is not satisfied that the remedy under Article 38 of the Law on
Pre-Trial Detention was effective.

(iii) Article 17 of the Law on Pre-Trial Detention

In accordance with
Article 17 of the Law on Pre-Trial Detention, the applicant could have,
but did not, lodge a written request to be removed to a non-smoking
cell. The Government argues that there have been cases when following
such requests detainees have been removed to other cells.

The Court notes that
Article 17 refers to the detainees' right to personal security. It does
not appear clearly either from the text of the law, or from any domestic
case-law, that the right to personal security includes the right not
to inhale cigarette smoke. However, the Court is ready to assume that
under this Article the applicant could have requested to be transferred
to a non-smoking cell. The Government admitted in their observations
that the prison authorities were aware of the applicant's disease. The
seriousness of the applicant's condition was later brought again to
the prison authorities' attention by the requests made by the applicant
for medical assistance on at least two occasions admitted by the Government
(see above); however, the prison authorities chose to place the applicant
in a general cell with smokers and to keep him there even after his
submitting requests for medical assistance. Having seen that the prison
authorities were aware of his disease but had taken no action, it is
understandable if the applicant formed the belief that he could not
hope to obtain satisfaction through lodging a formal request (see mutatis mutandisAksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, § 56).

Moreover, while the
Government submitted that there were cases when detainees were transferred
to other cells in similar circumstances, they have failed to give any
specific example of such cases or to prove that there were non-smoking
cells in the prison.

Accordingly the Court
considers that the remedy under Article 17 was not effective.

(b) The complaints concerning the interference
with the applicant's correspondence with his lawyer, the Prosecutor's
Office, the Information Centre of the Council of Europe and the Court

Since these complaints
are in any event inadmissible as being manifestly ill-founded (see below),
the Court does not consider it necessary to reach any conclusion on
the issue whether or not domestic remedies have been exhausted by the
applicant.

(c) The applicant's failure to challenge the
order of remand

The Government submit
that the applicant could also have, but did not, challenge the order
of remand.

The Court notes that
the applicant does not complain about his right to liberty. His complaints
relate to the conditions of detention, freedom of correspondence and
the right to have contact with his family.

3. Conclusion

In view of the above,
the Court concludes that the application cannot be declared inadmissible
for non-exhaustion of domestic remedies and accordingly the Government's
objection must be dismissed.

B. Alleged violation of Article 3 of the Convention

The applicant complains
under Article 3 of the Convention about his conditions of detention
in the Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3), between 18 October 2002
and 15 November 2002, and between 4 April 2003 and 13 December 2003.

Article 3 provides:

“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”

The applicant argues
that in view of the overcrowding, the sanitary conditions, the ventilation
and the heating, the opportunities for recreation, the health care and
the quality of food served, the conditions of detention in the remand
centre amounted to inhuman and degrading treatment both during the first
period of detention and during the second period of detention.

In support of his
statements the applicant sent the Court pictures allegedly taken in
cell number 16, in which he had been detained between April and November
2003.

The Government argues
that the applicant could not have had a camera in the prison because
it is forbidden for detainees to have cameras. Moreover, the Government
submit that the pictures cannot be considered by the Court as evidence
since in the Remand Centre No. 3 there are no views that look like the
ones in the pictures.

In view of their position
on the facts, the Government consider that the conditions of detention,
both during the first period of detention and during the second period
of detention, did not amount to inhuman and degrading treatment.

In support of their
submission the Government have forwarded to the Court a twelve minute
video filmed on an unspecified date.

In his comments the
applicant objects that there is no date indicated in the Government's
video and that the images of cell number 16 in the video were taken
in such a way as to preclude the viewer from noting its resemblance
with the images from the pictures sent by him.

In the light of the
parties' observations, the Court considers that this part of application
raises serious questions of fact and law which are of such complexity
that their determination should depend on an examination on the merits.
It cannot, therefore, be considered manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention, and no other ground for
declaring it inadmissible has been established.

C. Alleged violation of Article 8 of the Convention
in respect of the censorship of the applicant's correspondence

The applicant complains that the prison authorities
censored his correspondence with his lawyer, the prosecutor's office
and the Information Office of the Council of Europe in Chişinău. He
also submits that on 13, 14 and 15 December 2003, while being transferred
to another prison, the prison authorities searched all his personal
belongings and during the search they examined and censored his correspondence
with the Court. He also submits that the prison authorities intercepted
the correspondence with his mother. Finally, the applicant complains
that he could not have visits from his wife and daughter.

Article 8 of the Convention provides:

“1. Everyone has the right to respect for his
... correspondence.

2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”

1. Correspondence with his lawyer, the
prosecutor's office, the Information Office of the Council of Europe
and the Court

The Government submit
that the letters from the prosecutor's office and from the applicant's
lawyer were not addressed to the applicant only, but to the chief of
the prison too.

As to the envelope
received from the Information Office of the Council of Europe, the Government
submit that it was not written on the envelope that the sender was the
Information Office of the Council of Europe. Moreover, the envelope
arrived at the prison in a bad state and the prison officer made a note
on it to that effect.

As regards the examination
of the correspondence with the Court, the Government admit that the
applicant's belongings were searched during his transfer to another
prison; however, they deny that any correspondence with the national
or international human rights protection bodies was censored. The searches
of the detainees' belongings are a measure provided by the Code of Execution
of Criminal Sanctions and have the purpose of precluding the smuggling
of prohibited objects and substances into the detention facility.

The applicant submits
that the searches and the examination of the applicant's correspondence
with the Court cannot be considered necessary in a democratic society.

The Court notes that
while it is true that the letters from the applicant's lawyer and from
the prosecutor's office bore prison stamps on them, those letters were
addressed to the chief of the prison too. Accordingly, the prison authorities
were entitled to open them. Consequently, this part of the complaint
is manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.

As regards the letter
sent to the applicant by the Information Office of the Council of Europe,
the Court notes that the prison stamp was applied on the envelope and
not on its content. Accordingly, there is no indication that the envelope
was opened by the prison authorities. It follows that this part of the
complaint is also manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 and 4 of the Convention.

As far as the alleged examination of the applicant's
correspondence with the Court during the searches of 13, 14 and 15 December
2003 are concerned, the Court recalls that it has previously held that
the protection of “correspondence” provided by Article 8 of the
Convention cannot be invoked if the documents referred to had already
reached their addressee and no longer constituted “correspondence”
within the technical meaning of the term (see, L. v. Finland, no. 25651/94, Dec., 8 June 1999). The fact that
others than the addressee took cognizance of the letters does not therefore
necessarily constitute an interference with the applicant's right to
correspondence, the more so, since there is no indication and no evidence
that the correspondence with the Court was read by the prison authorities
during those searches. It follows that this part of complaint is also
manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.

2. Correspondence with his mother

As far as the correspondence
with the applicant's mother is concerned, the Government submit that
in accordance with Article 18 of the Law on Pre-Trial Detention,a remand prisoner can correspond with his or her relatives
and with other persons only on the basis of a written authorisation
given by the person or by the authority in charge of his or her case.
That person or authority can impose a justified limitation on the detainee's
correspondence, in the interest of justice or in the interest of security
and order within the detention facility. The remanded person's letters
are checked by the prison authority.

The applicant did
not have an authorisation to correspond or to have telephone conversations
with his relatives or with other persons because of the socially dangerous
character of his acts and in the interests of justice.

In cases when a remanded
person receives letters from his relatives or from other persons and
those persons do not have the necessary authorisation, the letters are
returned to the sender. This happened to the letter sent to the applicant
by his mother.

The applicant submits
that the prison authorities did not inform either him or his mother
about the need to lodge a request in order to obtain an authorisation
to correspond. Moreover, in his particular case, the prohibition on
corresponding with his mother was not necessary in a democratic society.

The Court considers
that this part of the application raises serious questions of fact and
law which are of such complexity that their determination should depend
on an examination on the merits. It cannot, therefore, be considered
manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention, and no other ground for declaring it inadmissible has been
established.

3. Contacts with his wife and daughter

The Government submit
that the applicant received visits on three occasions from his mother.
They do not deny the applicant's allegation that he could not receive
visits from his wife and daughter.

The applicant has
not commented on the Government's submission.

The Court considers
that this part of the application raises serious questions of fact and
law which are of such complexity that their determination should depend
on an examination on the merits. It cannot, therefore, be considered
manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention, and no other ground for declaring it inadmissible has been
established.

D. Alleged violation of Article 13 of the Convention

The applicant argues that he did not have an
effective remedy before a national authority in respect of the breaches
of Articles 3 and 8 of the Convention and alleges a violation of Article
13, which provides:

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority ....”

The Court considers that this part of the application
raises serious questions of fact and law which are of such complexity
that their determination should depend on an examination on the merits.
It cannot, therefore, be considered manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention, and no other ground for
declaring it inadmissible has been established.

E. Alleged violation of Articles 1, 14 and
18 of the Convention

In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention. It follows that
this part of the application is manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention and must be rejected pursuant to
Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's
complaint concerning his conditions of detention;

Declares admissible, without prejudging the merits, the applicant's
complaint concerning his right to correspondence with his mother;

Declares admissible, without prejudging the merits, the applicant's
complaint concerning his right to have contacts with his wife and daughter;

Declares admissible, without prejudging the merits, the applicant's
complaint under Article 13 of the Convention taken together with Article
3 and 8;